Felonious Assault by Causing ‘Serious Physical Harm’ Is a Lesser Included Offense of Attempted Murder

The Supreme Court of Ohio ruled today that the criminal offense of felonious assault based on the infliction of “serious physical harm” to another is a lesser included offense of attempted murder.

The court’s 7-0 decision, authored by Justice William M. O’Neill, reversed a ruling by the Third District Court of Appeals and remanded the case to that court for consideration of other issues that were raised on appeal but not addressed in its earlier decision.

The case involved the criminal prosecution of David Deanda, who was indicted on a charge of attempted murder based on an altercation outside Deanda’s home in which he stabbed another man seven times in the back, neck and face while shouting “I’m gonna kill you.” None of the wounds was deep enough to be life-threatening.

At the end of his jury trial on the attempted murder charge, Deanda asked the court to instruct the jury that it could return a verdict of not guilty of attempted murder but guilty of the lesser included offenses of assault or aggravated assault. The state requested an instruction advising the jury that it could find Deanda guilty of the lesser included offense of felonious assault based on the infliction of serious physical harm to another. Deanda opposed the state’s requested instruction on felonious assault. The trial court concluded that it would provide instructions on all of the lesser included offenses requested by the parties. The jury returned a verdict of not guilty on the charge of attempted murder, but guilty of the charge of felonious assault.

Deanda appealed, arguing that felonious assault is not a lesser included offense of attempted murder because it includes an element (the actual infliction of serious physical harm) that is not an element of the attempted murder offense for which he was indicted. The court of appeals agreed that the trial court erred by instructing the jury on felonious assault, and vacated Deanda’s conviction. The state sought and was granted Supreme Court review of the Third District’s ruling.

Writing for the court in today’s unanimous decision, Justice O’Neill reviewed prior decisions addressing the criteria to be applied in determining whether a given criminal offense is or is not a “lesser included offense” of another crime. He explained that the threshold issue courts must consider is whether the statutory elements of two crimes align in such a way that a person committing the more serious offense also commits the lesser offense.

Citing the analysis set forth in two of the Supreme Court’s most recent precedents, State v. Smith (2008) and State v. Evans (2009), Justice O’Neill wrote: “(T)he statutory-elements test for lesser included offenses has been repeatedly refined, clarified, modified, and amended, but it has never been overruled. While the test may produce severe results in some cases, we have learned … that it is essential to divorce the facts of a particular case from the statutory-elements analysis in order to preserve the defendant’s right to notice of the charges against him.”

“The proposed lesser included offense in the matter before us is felonious assault in violation of R.C. 2903.11(A)(1), which states, ‘No person shall knowingly … [c]ause serious physical harm to another … ’ The crime forming the foundation of the greater offense is murder in violation of R.C. 2903.02(A), which states, ‘No person shall purposely cause the death of another …’ Finally, Ohio’s general attempt statute states, ‘No person, purposely or knowingly … shall engage in conduct that, if successful, would constitute or result in the offense.’ R.C. 2923.02(A). ”

“(T)he core offense of murder requires purposely causing the death of another. … One type of felonious assault involves knowingly causing serious physical harm to another… Clearly the offense of murder necessarily includes the commission of felonious assault through causing serious physical harm, because purposely causing death necessarily involves knowingly causing serious physical harm. Also included in the offense of murder is attempted murder. … The elements of attempt include ‘engag[ing] in conduct that, if successful, would constitute or result in the offense.’”

“The problem with a strict statutory comparison of the above two offenses lies in the fact that the greater charged offense (attempted murder) is not accomplished, whereas the lesser offense (felonious assault) is a completed crime. Certainly it seems illogical to impose the requirement that the greater offense cannot be committed without the lesser offense also being committed, because an attempt offense almost always involves not committing the crime charged. Instead, when attempt is charged, the requirement is simply that the charge give notice of the proposed lesser included offenses.” Ensuring the notice that the constitution requires is, after all, the purpose of any analysis of lesser included offenses. And a charge of attempt gives notice that the prosecution may try to prove any element of the completed crime and elements necessarily included within those elements.”

“The only practical difference between attempted murder and felonious assault through causing serious physical harm is whether the defendant intended to kill the victim when he engaged in the particular conduct or whether he intended merely to injure the victim with that conduct. Since the desire to physically harm is a subset of, and necessarily included in, the desire to kill, and since one cannot intend to kill without also intending to cause physical harm, we conclude that felonious assault through causing serious physical harm is a lesser included offense of attempted murder.”

“Although the wording of the statutes for felonious assault through causing serious physical harm and attempted murder do not cleanly match up, we hold that a charge of attempted murder reasonably puts the defendant on notice that he may be convicted of felonious assault by causing serious physical harm. To hold otherwise would lead to untenable results and would defeat the obvious intent of the General Assembly to allow felonious assault to constitute a lesser included offense of attempted murder. By following the General Assembly’s intent, we allow the jury to do its job with proper instructions, and ensure that justice is done.”

“Accordingly, we hold that the Seneca County Court of Common Pleas correctly provided the jury with an instruction for felonious assault as a lesser included offense at the close of Deanda’s trial. We reverse the judgment of the Third District Court of Appeals and remand the cause to that court for consideration of additional assignments of error that were mooted by its original holding.”

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